Irwin v. Lido Realty Corp.

Full title: WALTER W. IRWIN, Appellant, v. LIDO REALTY CORPORATION et al., Respondents

Court: Court of Appeals of the State of New York

Date published: Feb 13, 1929

165 N.E. 459 (N.Y. 1929)

165 N.E. 459

Opinion

Argued January 15, 1929

Decided February 13, 1929

Appeal from the Supreme Court, Appellate Division, Second Department.

A.S. Gilbert for appellant.

John J. Curtin and Tracy S. Voorhees for respondents.

Per Curiam.

The plaintiff purchased of the Lido Realty Corporation lot No. 199 on a map showing the street in front of the premises, Fair Way avenue, running to the ocean. He was offered a deed according to a map which did not run Fair Way avenue to the ocean. This resulted in a law suit in which the plaintiff claimed that other streets shown upon the maps should be kept open for his benefit. Two of these other streets, Breakers Way and Blackheath road, have been closed at the ocean by the erection of a hotel or club house. Fair Way avenue, however, which runs past the plaintiff's property, affords him access to the ocean and with other streets surrounding his property gives him ready access to all the main thoroughfares and highways.

The plaintiff very reasonably assumes that the hotel should not be taken down and the portions of the two streets mentioned, which have been closed, kept open for his benefit. He has asked the courts of equity, however, for relief of some nature. The Special Term dismissed his complaint upon the merits. The Appellate Division provided in place of the dismissal that the plaintiff recover of the defendants the sum of $1,000, and thus modified the judgment, without costs.

On the trial of the case, counsel for the defendant offered the plaintiff $1,267.67, "which is intended to represent the money paid with interest to date, * * * or a new deed of lot No. 199 with reference to a new filed map, a combined filed map of the Lido Realty Co. and the Long Beach on the Ocean, Inc., which map shows among other things Fair Way Avenue open down to the ocean giving full access to the ocean."

Although the plaintiff, upon the facts and the law, is not entitled to all the relief which he asked in his complaint, he should, in our opinion, have either his money back with interest, or else a deed according to the map showing Fair Way avenue open to the ocean.

We, therefore, modify the judgment of the Appellate Division to this extent. The plaintiff at his election is to have judgment for the amount paid together with interest to date, or else is to receive the deed (Defendants' Exhibit B) offered by the defendants on the trial, that is, the deed of lot 199 according to the filed map (Defendants' Exhibit A) which shows Fair Way avenue open to the ocean. He is entitled to a deed which gives him access over Fair Way avenue to the ocean. The plaintiff is to make his election by serving upon the defendants' attorney within thirty days a written notice thereof. The judgment should be modified in accordance with this opinion and as modified affirmed, without costs in any court.

CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.

Judgment accordingly.